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Leave to appeal dismissed where, inter alia, "conflicting" decisions regarding the issues in play were not from Ontario

The Ontario Court dismissed Pfizer's motion for leave to appeal from the decision dismissing its motion to strike out various claims, made by Apotex, for failing to disclose a reasonable cause of action.

The Court addressed two preliminary matters concerning the factum and reply factum filed by Pfizer. First, Pfizer's factum did not comply with the Rules of Civil Procedure, in that it did not meet the standard of "characters used shall be of at least 12 point". While the Court accepted the factum to prevent further delays, the Court noted that ignoring the requirements of the Rules in respect of the proper format for documents is not to be countenanced. Further, the Divisional Court office has standing instructions to refuse to accept for filing any factum that does not comply with the Rules. Second, the right to file a reply factum is very limited and Pfizer's reply factum did not satisfy the requirements set out in the Rules. Therefore, the Court chose to give little consideration to the contents of the reply factum.

In dismissing Pfizer's motion, the Court found that Pfizer failed to meet both tests for leave to appeal set out in Rule 62.02(4). Concerning the first test, the Court noted that not all of the conflicting decisions were from Ontario, and even if there were conflicting Ontario decisions, it was not desirable for leave to appeal to be granted. The Court stated that this was a pleadings motion and it should only be the rare or unusual case that ought to warrant the consideration of the Court by way of an appeal. This was not the case here, especially when the pleadings issue would not be the end of the claim or the defence.

The Court also did not have good reason to doubt the correctness of the motion judge's order, in respect of the second test. The motion judge correctly applied the test on a motion to strike and found that it was not plain and obvious that the claims could not succeed.

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